GTE Sylvania Inc. v. Jupiter Supply Co., Inc.
| Decision Date | 08 March 1976 |
| Citation | 51 A.D.2d 993,380 N.Y.S.2d 742 |
| Parties | GTE SYLVANIA INCORPORATED, Respondent, v. JUPITER SUPPLY CO., INC., Defendant Third-Party Plaintiff, and Luna Industries, Inc., Defendant Third-Party Plaintiff Appellant; Columbia Lighting, Inc. et al., Third-Party Defendants. |
| Court | New York Supreme Court — Appellate Division |
Malvin T. Davidson, Monroe (James G. Sweeney, Monroe, of counsel), for appellant.
Manfredi & Bondi, New Hyde Park (Frank M. Manfredi, New Hyde Park, of counsel), for respondent.
Before MARTUSCELLO, Acting P.J., and LATHAM, RABIN and TITONE, JJ.
MEMORANDUM BY THE COURT.
In an action (1) against Jupiter Supply Co., Inc. to recover for goods sold and delivered and (2) against Luna Industries, Inc. on its guaranty of payment for such goods, Luna Industries, Inc. appeals from a judgment of the Supreme Court, Westchester County, dated May 5, 1975, which, Inter alia, granted the plaintiff's motion for summary judgment as against it.
Judgment affirmed, without costs or disbursements.
A motion for summary judgment cannot be defeated by conclusory statements devoid of evidentiary facts showing a bona fide issue requiring a trial. While appellant asserts the existence of a valid affirmative defense, it has not alleged evidentiary facts showing that any of the materials delivered by plaintiff were delivered late or improperly, or that it was overcharged, or that plaintiff delivered improper or defective merchandise, or that materials delivered were returned (see General Bldg. Supply Corp. v. Shapn, Inc., 35 A.D.2d 550, 313 N.Y.S.2d 459). Furthermore, the affidavit of appellant's attorney must be disregarded because of his failure to profess personal knowledge of the underlying facts (see V.A.W. of Amer. v. General Elec. Co., 38 A.D.2d 989, 990, 329 N.Y.S.2d 468; 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3212.05); objection to this affidavit was made by plaintiff at Special Term (see MacKenzie v. Rothschild, 267 App.Div. 989, 47 N.Y.S.2d 928, mod. 294 N.Y. 800, 62 N.E.2d 237; Universal C.I.T. Credit Corp. v. Murphy, 33 Misc.2d 74).
To continue reading
Request your trial
-
417 East Realty Associates v. Ryan
...252 N.Y.S.2d 90, 200 N.E.2d 774 Aetna Casualty & Surety Co. v. Schulman, 70 A.D.2d 792, 794, 417 N.Y.S.2d 77 GTE Sylvania v. Jupiter Supply Co., 51 A.D.2d 993, 994, 380 N.Y.S.2d 742 Davis v. Shelton, 33 A.D.2d 707, 304 N.Y.S.2d 722 DiSabato v. Soffes, 9 A.D.2d 297, 301, 193 N.Y.S.2d 184 CPL......
-
Rosenberg v. Del-Mar Division, Champion Intern. Corp.
...not alleged evidentiary facts showing that any of the goods delivered by defendant were delivered late (see GTE Sylvania v. Jupiter Supply Co., 51 A.D.2d 993, 380 N.Y.S.2d 742). Moreover, the contract claim is barred by reason of Res judicata. In a prior action between defendant and plainti......
-
Lighting Horizons, Inc. v. E.A. Kahn & Co.
...will not, without more, preclude a court from granting a plaintiff's motion for summary judgment (see, GTE Sylvania v. Jupiter Supply Co., 51 A.D.2d 993, 994, 380 N.Y.S.2d 742; General Bldg. Supply Corp. v. Shapn, Inc., 35 A.D.2d 550, 551, 313 N.Y.S.2d The defendant's parol recitation of th......
- Goodrich v. Lavine